Republican appointees Samuel Alito, Neil Gorsuch and Clarence Thomas are willing to throw out some ballots after the election.
The U.S. Supreme Court issued two decisions Wednesday evening, declining to stop a Pennsylvania Supreme Court ruling and a North Carolina Board of Elections order that both extended the deadlines for mail-in ballots to be received in their states.
The Pennsylvania Supreme Court ruling allowed ballots postmarked by Election Day to still count if they are delivered by mail up to three days after the election. The order from the North Carolina Board of Elections and a state court extended the receipt deadline to Nov. 12. Those extensions remain in effect. For now.
Though both decisions are clear temporary victories for voting rights advocates, the dissents in each case suggest an ominous possibility. At least three justices ― Samuel Alito, Clarence Thomas and Neil Gorsuch ― are open to taking up the Pennsylvania case again and potentially throwing out any ballots that arrive within the three days after Nov. 3.
In the Pennsylvania case, Gorsuch and Thomas joined a dissenting statement written by Alito suggesting that they would overturn the state court’s ruling and potentially rehear the case and invalidate any votes received during the extended period. In the North Carolina case, Gorsuch wrote a dissent joined by Alito calling the Board of Elections’ extension of the receipt deadline “egregious.” Thomas dissented but did not join Gorsuch’s dissent opinion.
The extension of the ballot receipt deadline by the Pennsylvania Supreme Court means that the 2020 election there will be “conducted under a cloud,” Alito wrote, adding, “there is a strong likelihood that the State Supreme Court decision violates the Federal Constitution.” While “there is simply not enough time at this late date to decide the question before the election,” Alito declared, “the petition for certiorari remains before us, and if it is granted, the case can then be decided under a shortened schedule.”
Hopefully the few states remaining that want to take a lot of time after Nov. 3 to count ballots ― that won’t be allowed by the various courts because, as you know, we’re in courts on that.President Donald Trump
The petitioners, Pennsylvania Republicans, had asked the court to order the state to segregate all ballots received during the extended receipt deadline period from other ballots. The court did not grant this request. However, the state attorney general ordered the ballots to be segregated anyway.
Alito suggests that segregating the ballots would be necessary because, “if the State Supreme Court’s decision is ultimately overturned, a targeted remedy will be available.”
This means Alito, Thomas and Gorsuch are open to a legal challenge brought by President Donald Trump after Election Day that would invalidate votes cast legally in Pennsylvania after the votes are cast ― when Trump and the justices would know how many votes he needs to have invalidated to win reelection. Gorsuch doesn’t explicitly state his support for tossing ballots after the election in the North Carolina case, but it appears the same logic would apply because both cases raise the same legal question.
Newly confirmed Justice Amy Coney Barrett, according to the decision, “took no part in the consideration or decision of this motion.” Trump’s latest conservative appointee could join these three to take up such a postelection challenge.
This is what Trump wanted when he pushed for Barrett’s confirmation ahead of the election. “I’m counting on them to look at the ballots, definitely,” he said at the first presidential debate with Democratic nominee Joe Biden.
“Hopefully the few states remaining that want to take a lot of time after Nov. 3 to count ballots ― that won’t be allowed by the various courts because, as you know, we’re in courts on that. We just had a victory the other day in Wisconsin on that matter,” he said Wednesday.
Interestingly, Justice Brett Kavanaugh does not appear to have joined Alito, Gorsuch and Thomas in the Pennsylvania and North Carolina dissents even though he had just issued an affirming opinion in a Wisconsin case in which he agreed with the underlying legal arguments presented Wednesday by Alito and Gorsuch in their dissents.
Since the new 6-3 conservative majority on the court requires two conservatives to join the three Democratic appointees on the bench to flip any result to the liberal side by 5-4, Kavanaugh and Barrett appear to be the two potential swing justices who could join Chief Justice John Roberts, who has indicated he sides with the three liberals on this particular question, to not steal the 2020 election for Trump.
The election can only be usurped by the court if the margin is so close that the number of ballots received in the period of time in question can change the result. The best way to avoid that is for voters to not mail their ballots at this point. Voters can instead return their mail-in ballots in person to avoid any risk that their ballots might get delivered late and be invalidated by the court.